Lewis F. McLain, Jr.
4906 Morning Glory Way
McKinney, TX 75070-5273
214-793-7729 / lfm@citybase.net
(Updated for date corrections, items inadvertently omitted and additional commentary)
August 27, 2016
Collin County District Attorney Greg Willis
2100 Bloomdale Rd Suite 100
McKinney, TX 75071
Texas Ethics Commission
Natalia Luna, Executive Director
201 East 14th St 10th Floor
Austin, TX 78701
Subject: Complaint of an elected official abusing his position and violating the Texas Open Meetings Act and Public Information Act.
Dear Sir and Madam:
I would like to make a complaint against an elected official and request that you look into the actions of McKinney City Council member Rainey Rogers. I have included a string of texts and email correspondence between several council members that point to the likelihood of Texas Open Meeting Act violations regarding Walking Quorums. Also, I believe Mr. Rogers has lied and failed to comply with an Open Records Request in violation of the PFIA.
The McKinney City Council consists of Mayor Brian Loughmiller; Current Mayor Pro-Tem Randy Pogue; Former Mayor Pro-Tem Travis Ussery; and Council Members Don Day, Tracy Rath, Rainey Rogers and Chuck Branch.
Current Mayor Pro-Tem Randy Pogue announced on about May 21, 2016, that he was going to run for Mayor in May 2017 even though the official filing date is not until February 1, 2017. However, 17 days later at the scheduled appointment of the Mayor Pro-Tem decision at the June 7, 2016 Council meeting, an action occurred that I believe was the result of a Walking Quorum.
It was pretty much expected within the community that Travis Ussery would be reappointed for his fourth term as Mayor Pro-Tem. He is termed out after one more year serving on the City Council. However, there had to be discussions between Councilmembers prior to the meeting. Documents show that discussions must have occurred right up to 26 minutes before the meeting started on June 7. Below you will find text and emails obtained from my Open Record Requests that show Council member Rainey Rogers polling Randy Pogue on June 6 to ask if his vote, presumably the swing vote, would help Mr. Pogue in his run for Mayor.
Mr. Rogers further and unequivocally documents that he is using his Council position to influence an election. He writes Travis Ussery at 5:04 before the 5:30 meeting to give him a heads up that his vote will be for Randy Pogue instead of Mr. Ussery. Here is Mr. Rogers’ rationale:
“I just see this as a move so that I do not have to work with someone that I do not see as mayor material.”
This reference can only be pointed toward the other mayoral candidate to announce, George Fuller.
There is nothing wrong with one council member helping another council member run for office. However, I believe this is an egregious breach of ethical behavior to use a Council procedure to elevate the advantages of a sitting council member at the expense of an opponent for an election many months away. Common sense tells you that being Mayor Pro-Tem will be a distinct advantage. I am sure the future campaign signs will include the Mayor Pro-Tem title.
Even if Mr. Pogue did not orchestrate this political move, which he says did not happen, there is also no evidence that out of respect and concern for appearance that he discouraged this action. In that regard, I believe he should be stripped of that title so the playing field can be leveled. Before his announcement for the office of Mayor and his Shakesperean ambition (he actually did an in-your-face to the Mayor Loughmiller and Travis Ussery upon being made Mayor Pro-Tem by reannouncing his candidacy at the dias!) got the best of him and was revealed, he has always been gentlemanly and respectful at least for the public’s eye.
Mr. Pogue has also recently initiated a movement to create a Restaurant Row in McKinney that dozens of people I have talked to agree is the most bizarre action in both content and timing. Incentive restuarnts to come and corporations will follow! Nobody is buying this “economic” brainchild of Mr. Pogue. It is clearly an attempt to campaign from the dias showing as many mayoral traits as possible. I have blogged about this event and other conflicts of interest at http://www.citybaseblog.net.
Further, my view is that there is another related legal violation. I requested all correspondence between Council members regarding the discussion of the Mayor Pro-Tem decision. Mr. Rogers said he had none. Yet two council members complied with my ORR showing they had received messages from Mr. Rogers. He has lied and is not in compliance with the law. While I am not a lawyer, I’ve been in municipal government for 43 years and have had the PFIA and TOMA explained to me dozens of times by numerous attorneys. I even have a course certificate from the Texas Municipal League from attending their training.
Related, the City supplied responses from all Council members with the exception of the conspicuous absense of any reponse from Chuck Branch – not even a statement that he did not have any records. In the transmittal letter from the City’s Attorney, this statement was included: “Per the Act, governmental entities are not required to answer fact questions posed as part of a request. Nevertheless, the City is providing all documents responsive to your request …” I have full expectations that Mr. Branch had correspondence with other Council members. I also have full expectations that if either of your offices were to ask Mr. Branch and other Council members under oath if they submitted all correspondence in compliance with my ORR, you will likely get a different response than I did. My guess is that they would not tell you Council members don’t have to answer fact questons.
In conclusion, I request that you investigate this matter. I am a regular citizen, but you have the ability to obtain testimony under oath. I feel certain you are going to find my complaint has merit, with a conspiracy to influence an election abusing his role as an elected official that will lead you to actions taken against Mr. Rainey Rogers. I also request you investigate Current Mayor Pro-Tem Pogue for his unethical behavior veiled in the actions of his supportive council members.
Thank you.
Lewis F. McLain, Jr.
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Date: May 1, 2016 11:38 AM
From: Travis Ussery
To: Brian Loughmiller
Brian,
[LFM Note: there was a part of the message redacted since it had to do with a personal family welfare topic.]
Somewhat related in a twisted way I find myself challenged in ways I didn’t think possible in the public service arena. I fully understand being second guessed and addressing those who don’t agree with decisions. But to have colleagues with some I serve undermining my integrity and effectively my ethics in the area which has elected me three times is unfathomable. Further, I was never included on any part of the discussion. I have not acted in a manner discreditable to the city or myself. And this is done to what end? The betterment of the city as a whole? I think not.
The allure of power and minimizing one who has earned the respect of the community is, unfortunately, the only answer I can determine.
You know of my heredity and my father’s service here. I offer, perhaps again, I shared an office with former Mayor Bill Finney. Finney Park is in his remembrance. I was mentored in some way by the Whisenant family who can lay claim to two mayors. James Steward another former banker and council member with my father was always there when I needed him (I have [a] story about his personally financing a couple of my duplexes I will share). There are others I can add but for brevity only I will leave off this list. With this history I can say firmly I have a 70 year perspective of McKinney governance.
I realize the area has changes and along with the local culture. But after much extended thought and revisiting a few documents I can safely say I don’t think there has been a group more focused on personal glory and standing at the expense of others (at least one being me) and to the exclusion of the civic and moral expectations of public office. I have no reason as of this writing to believe personal financial gain has occurred although I do believe the allure of that forbidden fruit is dangling closer than it should. I know firsthand some of the cheap shots you have received and I am sure there are more that I have not seen. I have gladly supported you in every way I can not only because it is the duty to do so given my upbringing but I know you act with sincerity and for the greater good of the community.
While I will not waver from this I will not lower myself to the deceitful underground of disparagement others find amusing. I do, however, believe when asked I will address the questionable antics of some in my own discreet, William Buckley-ish manner. Not to provide you a heads-up would be less than professional and unbecoming of one respectful of what McKinney has been historically and should be.
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Date: May 1, 2016 11:38 AM
From: Brian Loughmiller
To: Travis Ussery
Subject: Re: higher ground
Challenging times ahead for sure. Tracey asked me who I was nominating for Mayor Pro Tem. I told her that it was going to be you. No further comment was made so it will be interesting to see what unfolds from the group.
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Date: June 6, 2016 4:42 PM
From Rainey Rogers
To: Randy Pogue
Randy, I have been struggling with what to do about the MPT position. The only reason I have not to support Travis is that I want to do what I can to help you be our mayor next year. But most anyone I speak to doesn’t that is much help in becoming mayor and it really only has any meaning to those on the council. So right now I am leaning to supporting Travis unless you think it would be helpful to your campaign. What would be your council [sic] to me be?
[LFM Note: I asked Randy Pogue about his response since it was not in the message he sent me. He said “I did not respond with anything but a verbal that I was not going to be involved, and for him to do what he thought to be best.”]
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Date: June 7, 2016 5:04 PM.
From: Rainey Rogers
To: Travis Ussery
Travis, I wanted to give you a heads up, after giving it a lot of thought I think I would like to see Randy as MPT. It has nothing to do with not supporting you as much as I really see it helping Randy become our next mayor. Someone asked me today if you have been a good mayor PT and I said without a doubt Travis has been a great stand in for the mayor, In every way you have served in this position well. I just see this as a move so that I do not have to work with someone that I do not see as mayor material. Last year I fully supported you and even seconded the move to have you serve as MPT. I do not know what will happen tonight but I didn’t want to surprise you with my direction.
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Date June 7, 2016 5:06 PM.
From: Travis Ussery
To: Rainey Rogers
I understand and thank you for the heads up. As I mentioned previously for me this is ultimately about Brian and respect for him. I hope you understand.
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Date: June 7, 2016 5:09 PM.
From: Rainey Rogers
To: Travis Ussery
Absolutely, I uderstand and I too have the concern that someone might think that I would do not support Brian in some way, nothing could be further from the truth.
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June 7, 2016 10:41 PM
From Randy Pogue
To: Travis Ussery
I know tonight must have been tough for you, and I apologize for the way in which it all came down.
I want to truly thank you for your service to McKinney. I know that you have always been there for Brian, and the City.
I hope to fill your shoes from that perspective.
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Date: June 7, 2016 10:41 PM.”
From Travis Ussery
To: Randy Pogue
Honestly I know in your mind you mean well but …
I will say whatever I have to say in person. It the only way I know given my upbringing and mentoring by former mayors before your time including my father. Hand of God be with all from the grandson of a Baptist minister.
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Date: August 3, 2016 7:51 PM
From Don Day
To: Mark Houser
Subject: Re: McLain PIA
Mark: I do not have any such correspondence regarding this subject. Don Day.
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Date: August 4, 2016 8:54 PM
From Tracy Rath
To Mark Houser
Subject: Re: McLain PIA
Mark: Just to confirm, I have completed a search of all texts, emails and written notes and do not have anything that fits this request. Thanks Mark.
Let's Talk About It, Lewis! 